Legal aid and civil justice

Effective access to the courts is being threatened.

Yesterday's written statement of the Lord Chancellor, Kenneth Clarke QC MP began well enough. Introducing the Legal Aid, Sentencing and Punishment of Offenders Bill, he said:

Protecting the public from crime, ensuring those who break the law face the consequences, and providing swift, cost-effective and fair access to justice are fundamental responsibilities of the state towards its citizens.

So there you have it. In respect to both civil and criminal justice, providing swift, cost-effective and fair access to justice is a fundamental responsibility of the state towards its citizens.

But in respect of civil justice -- where one party takes another to court -- what does that actually mean?

Civil courts have two broadly overlapping functions. They provide a forum for settling disputes and they provide the means by which individuals can rely on their legal rights. Ideally, a civil court should do both: disputes are resolved by a judge determining the respective legal rights of the claimant and defendant.

In practice, however, almost all civil litigation is settled before it gets anywhere close to a judge for final disposal. As a general rule, litigation is settled in favour of the party in the stronger negotiating position: the party with more money, with better access to appropriate legal advice, and with the greater ability to assume the risk of losing.

In this way, the early settlement of civil disputes will usually tend to disadvantage the claimant or defendant that is weaker than the opposing party. It is only if the claimant can get their case before an impartial and independent court that they can hope to take the benefit of their legal rights. Otherwise, civil litigation is reduced to what the stronger party can get away with. Dispute resolution -- even "early dispute resolution" -- is not identical to access to justice. Indeed, it can mean the reverse.

With this in mind, let us see what Clarke also said yesterday in the written statement, specifically about civil justice:

In civil justice, we have a system burdened by spiraling costs, slow court procedures, unnecessary litigation, and too limited an awareness of alternatives to court -- all of which add to a fear of a compensation culture. In particular, our current system of legal aid too often encourages people to bring their problems before the courts, even when they are not the right place to provide good solutions and sometimes for litigation that people paying out of their own pocket would not have pursued.

However, these appear to be weasel words.

Take, for example, "our current system of legal aid too often encourages people to bring their problems before the courts" and replace the word "encourages" with the word "enables". If the reality of the matter is that the current system of legal aid enables weaker parties to have access to justice - and the determination of their legal rights by judges - this cannot be sidestepped easily by mischaracterising this access as "encouragement".

Similarly, take "sometimes for litigation that people paying out of their own pocket would not have pursued" and replace the word "would" with "could". Again, if people cannot pursue litigation but for the system of legal aid, then Clarke is mischaracterising the effect of that system.

So in one written statement, Clarke gives an assurance that he accepts providing swift, cost-effective and fair access to justice is a fundamental responsibility of the state towards its citizens; and then a few sentences later he undermines that assurance in respect of civil justice by deftly casting aspersions on those who use legal aid so as to gain access to the courts for the determination of their legal rights.

In fact, the assault on the civil legal aid system announced yesterday is horrific and wrong-headed.

Instead of seeking to target civil legal aid on cases which may not otherwise be able to proceed to court, the Ministry of Justice is simply taking whole areas of civil law out of the system altogether.

At a stroke, legal aid will no longer be available for clinical negligence, employment, immigration, and welfare benefits cases. It will also not be available for most private family law cases, debt and housing issues, and education cases.

Just listing these areas of law makes one realise that it will be those less able and less equipped to deal with the stress and sheer expense (and costs risks) of civil litigation. Without civil legal aid, weak parties will simply be at the mercy of the litigation strategy of the stronger party.

For example, in family cases - as the Conservative MP Helen Grant pointed out yesterday in the Commons:

mediation is no panacea and that it can fail badly in family cases where there is an imbalance in power.

And it gets worse. The hope of the Ministry of Justice is that some of those who will no longer have access to civil legal aid will obtain legal help on a "no win no fee" basis, especially in respect of clinical negligence. This means that the claimant's lawyers will, if successful, charge an additional "uplift" on their fees, sometime up to 100 per cent of their actual charges, to the losing party. As the defendant will invariably be some part of the National Health Service, these "savings" will in practice cost the taxpayer twice the amount: it will just be the Department of Health's problem, not the Ministry of Justice's.

Then there is the general effect of their being more claimants and defendants without legal assistance. "Litigants in person" are a considerable drain on any courts resources. What should be one hour applications will tend to last one day, and trials which should take one day will tend to last a week. Accordingly, removing civil legal aid will be a false economy for the civil justice system as a whole.

There is no perfect form of ensuring access to justice for civil litigants without private resources. And the Ministry of Justice is having to make savings thrust upon it by the government as a whole. It cannot be blamed as if this were a policy that it formulated free from budget restraints.

All that said, the cuts to civil justice legal aid make no sense on their own terms and could cost the state more overall.

There is no reason to believe that law firms will be able to provide advice to those who no longer qualify; and those firms that do will seek often to burden the taxpayer by other means, through higher costs.

Individuals without civil legal aid or other access to lawyers will simply not seek to rely on their legal rights, or will be bullied into unfair settlements, or will clog up the already inefficient civil courts. None of these are attractive outcomes.

It may be that our Lord Chancellor sincerely believes providing swift, cost-effective and fair access to justice is a fundamental responsibility of the state towards its citizens. However, his department's current civil justice aid policy means this "fundamental responsibility" will certainly not be discharged in practice.

 

David Allen Green is legal correspondent of the New Statesman and a practising solicitor.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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After Richmond Park, Labour MPs are haunted by a familiar ghost

Labour MPs in big cities fear the Liberal Democrats, while in the north, they fear Ukip. 

The Liberal Democrats’ victory in Richmond Park has Conservatives nervous, and rightly so. Not only did Sarah Olney take the votes of soft Conservatives who backed a Remain vote on 23 June, she also benefited from tactical voting from Labour voters.

Although Richmond Park is the fifth most pro-Remain constituency won by a Conservative at the 2015 election, the more significant number – for the Liberal Democrats at least – is 15: that’s the number of Tory-held seats they could win if they reduced the Labour vote by the same amount they managed in Richmond Park.

The Tories have two Brexit headaches, electorally speaking. The first is the direct loss of voters who backed David Cameron in 2015 and a Remain vote in 2016 to the Liberal Democrats. The second is that Brexit appears to have made Liberal Democrat candidates palatable to Labour voters who backed the party as the anti-Conservative option in seats where Labour is generally weak from 1992 to 2010, but stayed at home or voted Labour in 2015.

Although local council by-elections are not as dramatic as parliamentary ones, they offer clues as to how national elections may play out, and it’s worth noting that Richmond Park wasn’t the only place where the Liberal Democrats saw a dramatic surge in the party’s fortunes. They also made a dramatic gain in Chichester, which voted to leave.

(That’s the other factor to remember in the “Leave/Remain” divide. In Liberal-Conservative battlegrounds where the majority of voters opted to leave, the third-placed Labour and Green vote tends to be heavily pro-Remain.)

But it’s not just Conservatives with the Liberal Democrats in second who have cause to be nervous.  Labour MPs outside of England's big cities have long been nervous that Ukip will do to them what the SNP did to their Scottish colleagues in 2015. That Ukip is now in second place in many seats that Labour once considered safe only adds to the sense of unease.

In a lot of seats, the closeness of Ukip is overstated. As one MP, who has the Conservatives in second place observed, “All that’s happened is you used to have five or six no-hopers, and all of that vote has gone to Ukip, so colleagues are nervous”. That’s true, to an extent. But it’s worth noting that the same thing could be said for the Liberal Democrats in Conservative seats in 1992. All they had done was to coagulate most of the “anyone but the Conservative” vote under their banner. In 1997, they took Conservative votes – and with it, picked up 28 formerly Tory seats.

Also nervous are the party’s London MPs, albeit for different reasons. They fear that Remain voters will desert them for the Liberal Democrats. (It’s worth noting that Catherine West, who sits for the most pro-Remain seat in the country, has already told constituents that she will vote against Article 50, as has David Lammy, another North London MP.)

A particular cause for alarm is that most of the party’s high command – Jeremy Corbyn, Emily Thornberry, Diane Abbott, and Keir Starmer – all sit for seats that were heavily pro-Remain. Thornberry, in particular, has the particularly dangerous combination of a seat that voted Remain in June but has flirted with the Liberal Democrats in the past, with the shadow foreign secretary finishing just 484 votes ahead of Bridget Fox, the Liberal Democrat candidate, in 2005.

Are they right to be worried? That the referendum allowed the Liberal Democrats to reconfigure the politics of Richmond Park adds credence to a YouGov poll that showed a pro-Brexit Labour party finishing third behind a pro-second referendum Liberal Democrat party, should Labour go into the next election backing Brexit and the Liberal Democrats opt to oppose it.

The difficulty for Labour is the calculation for the Liberal Democrats is easy. They are an unabashedly pro-European party, from their activists to their MPs, and the 22 per cent of voters who back a referendum re-run are a significantly larger group than the eight per cent of the vote that Nick Clegg’s Liberal Democrats got in 2015.

The calculus is more fraught for Labour. In terms of the straight Conservative battle, their best hope is to put the referendum question to bed and focus on issues which don’t divide their coalition in two, as immigration does. But for separate reasons, neither Ukip nor the Liberal Democrats will be keen to let them.

At every point, the referendum question poses difficulties for Labour. Even when neither Ukip nor the Liberal Democrats take seats from them directly, they can hurt them badly, allowing the Conservatives to come through the middle.

The big problem is that the stance that makes sense in terms of maintaining party unity is to try to run on a ticket of moving past the referendum and focussing on the party’s core issues of social justice, better public services and redistribution.

But the trouble with that approach is that it’s alarmingly similar to the one favoured by Kezia Dugdale and Scottish Labour in 2016, who tried to make the election about public services, not the constitution. They came third, behind a Conservative party that ran on an explicitly pro-Union platform. The possibility of an English sequel should not be ruled out.  

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.